Citation Nr: 0013643
Decision Date: 05/23/00 Archive Date: 05/30/00
DOCKET NO. 97-25 580 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to retroactive benefit payments for a
dependent child, based upon the veteran's benefits for
permanent and total disability based on non-service-connected
disability payments.
2. Whether new and material evidence has been received
sufficient to reopen a claim for service connection for a low
back disorder, and if so, is the claim well grounded.
3. Entitlement to service connection for a knee disorder.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Crowley, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1975 to
November 1975.
This appeal initially came before the Board of Veterans'
Appeals (Board) from a rating decision rendered in January
1997 by the North Little Rock, Arkansas, Regional Office (RO)
of the Department of Veterans Affairs, which declined to
reopen the veteran's claim concerning his low back condition,
and denied his claim of entitlement to a knee condition. By
means of a decision dated August 1998, the Board remanded the
claims of new and material evidence for a low back disorder
and of entitlement to a knee disorder to determine whether
the veteran still desired a hearing before a Member of the
Board. In a February 1999 rating action, entitlement to
retroactive benefits for a dependent child was also denied.
A hearing was held before the undersigned Member of the
Board, in October 1999, sitting at the Little Rock RO.
FINDINGS OF FACT
1. The veteran did not have custody of his daughter from
March 1978, and provided no support for her independent of
the direct Social Security benefits that she purportedly
received on her own behalf based upon his earnings record.
2. The veteran's daughter was legally adopted in 1993.
3. The evidence received subsequent to December 1986 with
regard to a claim for service connection for a back disorder
is so significant by itself or in connection with evidence
previously assembled that it must be considered in order to
fairly decide the merits of the claim.
4. A back disorder is not shown to be related to the
veteran's active service.
5. A knee disorder, if extant, is not shown to be related to
the veteran's active service.
CONCLUSIONS OF LAW
1. The veteran's daughter does not qualify as a dependent
for VA purposes. 38 U.S.C.A. § 101(4) (West 1991); 38 C.F.R.
§§ 3.23 (d), 3.57 (a), 3.356, 3.667 (1999).
2. The evidence received subsequent to the RO's December
1986 rating decision is new and material, and serves to
reopen the veteran's claim for service connection for a back
disorder. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R.
§ 3.156(a) (1999).
3. A claim for service connection for a back disorder is not
well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
4. A claim for service connection for a knee disorder is not
well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Entitlement to retroactive benefit payments for a
dependent child, based upon the veteran's benefits for
permanent and total disability based on non-service-connected
disability payments.
The veteran contends, in essence, that he is entitled to
retroactive benefit payments for his daughter, in addition
to, and based on, his permanent and total disability rating
based on non-service-connected disability. Specifically, the
veteran submitted a VA Form 21-674, "Request for Approval of
School Attendance", dated September 1998, where he indicated
that he believed that his daughter attended school. The RO
denied his claim, in an administrative determination dated
February 1999, noting that the veteran was informed that
benefits could not be paid in a letter dated April 1989, and
that he was asked to complete Form 21-674, but that it was
not received until [September] 1998. After further
clarification, the RO, in a report of contact dated April
1999, noted that the veteran was requesting retroactive
benefit payments for a dependent daughter from the effective
date of his entitlement. The veteran subsequently perfected
an appeal, and had a hearing before the undersigned Member of
the Board in October 1999.
After a review of the record, the Board finds that a
preponderance of the evidence is against the veteran's claim,
and that entitlement to retroactive benefit payments for a
dependent child, based upon the veteran's benefits for
permanent and total disability based on non-service-connected
disability payments, is not established.
Basic entitlement to an improved disability pension exists,
in pertinent part, if an otherwise qualified veteran has an
annual income that is not in excess of a maximum annual
pension rate which is established every year. 38 U.S.C.A.
§§ 1503, 1521 (West 1991); 38 C.F.R. §§ 3.3(a)(3), 3.23,
3.273 (1999). The rate payable is reduced by the veteran's
annual income. Id. Under VA regulation, a veteran's "annual
income" includes his annual income, the annual income of his
dependent spouse, and, with certain exceptions, the annual
income of each child of the veteran in the veteran's custody
or to whose support the veteran is reasonably contributing.
38 C.F.R. § 3.23(d)(4).
In accordance with governing regulations, the term child of
the veteran includes an unmarried person who is a legitimate
or illegitimate child of the veteran who is under the age of
18 years; or who, before reaching the age of 18 years, became
permanently incapable of self-support; or who, after reaching
the age of 18 years and until completion of education or
training (but not after reaching the age of 23 years), is
pursuing a course of instruction at an approved educational
institution. 38 U.S.C.A. § 101(4); 38 C.F.R. § 3.57(a),
3.356, 3.667.
Under 38 C.F.R. § 3.23(d)(1), a child of a veteran not in the
custody of the veteran and to whose support the veteran is
not reasonably contributing, may not be considered the
veteran's dependent.
The veteran maintains that he should be granted retroactive
benefits payments for his daughter on two theories. First,
because of monthly support payments he alleges he made to
her. Second, because of monthly benefits payments made to
her from the Social Security Administration (SSA) based on
the veteran's earnings record. Our review of the record
shows that the veteran submitted numerous forms depicting
whether or not he had dependents, including VA Form 21-
686(c), "Declaration of Status of Dependents"; VA Form 21-
527 "Income Net Worth and Employment Statements"; VA Form
21-0515, "Improved Pension Eligibility Verification
Report"; and additional forms and correspondence. In
addition, it is noted that the veteran claims that he is
receiving improved pension benefits for another child, and
thus, he reports another dependent in addition to his
daughter.
In 21-686(c)s dated October 1986 and February 1987, the
veteran named his daughter as a dependent, and stated that he
paid $65 per month to his ex-wife. Income and Net Worth
Employment Statements were also completed for this time
period. In December 1986, the veteran indicated on a VA Form
21-527 that he contributed either '$250 or $50 or $150' per
month to his ex-wife; and in April 1987, the veteran
indicated that he provided $65 per month to his ex-wife, and
that his child was in the custody of her mother.
The veteran completed Improved Pension Eligibility
Verification Reports dated February 1987, where he checked
"Yes" when he was asked whether he had dependent children.
In December 1988, however, the veteran contended that his
daughter was in the custody of her mother, and he did not
indicate that he contributed to her support, leaving the
space blank provided for him to indicate how much monthly he
contributed. A January 1989 record from the Social Security
Administration indicated that the daughter became eligible
for benefit payments in October 1983, and that her payment
amount in 1988 was $94 monthly. A report of contact dated
February 1989 clarified that the veteran did not contribute
to her support, and that her only means of support was from
the Social Security Administration. A subsequent letter from
the veteran also indicates that he did not contribute to her
support, and that her sole means of support was from the
Social Security Administration. A VA Form 21-686(c)
completed by the veteran indicates that his daughter was paid
approximately $130 or $125 per month from the Social Security
Administration since 1985, and that he had two dependents.
The veteran again completed Improved Pension Eligibility
Verification Reports, the first of which is dated January
1991, where he checked "Yes" when he was asked whether he
had dependent children. In January 1992, he indicated that
he had two dependent children, and in March 1993, he
completed a form indicating that he had one dependent child
not in his custody. In March 1996, the veteran indicated
that he had two dependent children, not in his custody.
Our review of the record also shows that the veteran's
divorce decree and related court orders are of record. His
divorce decree, dated March 1978, stipulated that the veteran
was to pay $50 per month in child support, and that the
payments were to be made to the clerk of the court. No such
records reflecting payment are of record. In fact, our
review of the claims folder shows that an order was entered
against the veteran for contempt of this decree. This order
is dated November 1989, and reflects that the veteran was
"currently in arrears of child support" payments, and that
the veteran's ex-wife was awarded a judgment in the amount of
$3,000. That order also modifies the veteran's divorce
decree to the extent that "[S]ocial [S]ecurity payments for
the benefit of [veteran's daughter] will be credited to the
child support account of [the] Defendant".
This portion of the order is underlined, and appears to be
the crux of the veteran's claim. That is, the veteran's
contends that because his daughter may have received SSA
benefits under his earning record, that she should in turn be
considered a 'dependent child' for purposes of VA law and
regulation, so that he may collect improved pension benefits,
on the theory that he was supporting her.
There is no dispute that the veteran did not have custody of
his daughter, thus, the question that is central to the
Board's resolution of the case is whether the veteran
reasonably contributed to his daughter's support, so that she
may be considered the veteran's dependent, for purposes of VA
improved pension benefit eligibility.
We first note that the veteran testified before a Member of
the Board in October 1999. A review of his hearing
transcript reflects that he then claimed that he made child
support payments, in varying amounts, for at least ten years,
to his ex-wife, but that she had the money order receipts.
The Board finds that these contentions are without merit.
First, we note that the veteran's divorce decree first
provided that he was to make payments of $50 per month to the
clerk of the court, and that no such records showing that he
made the payments are of record. In fact, the veteran has
submitted an order showing that he was in contempt of court
for failure to pay child support. That order, dated November
1989, reflects that the veteran was in arrears of child
support payments, and that his ex-wife was awarded a judgment
of $3,000, or five years of back pay ($3000/$50 = 60 months
or 5 years). Thus, the evidence tends to show that the
veteran did not make any child support payments from at least
November 1984 to November 1989.
Moreover, the records the veteran submitted to VA show
several inconsistencies as to whether he had dependent
children. For example, in January 1992, he indicated that he
had two dependent children, and in March 1993, he completed a
form indicating that he had one dependent child not in his
custody. There is no competent evidence of record to show
that the veteran made any child support payments. Therefore,
his daughter is not considered a 'dependent' 'child' for the
purposes of improved pension benefits. 38 U.S.C.A. § 101(4);
38 C.F.R. §§ 3.23(d)(1), 3.57(a), 3.356, 3.667 (1999). Thus,
the preponderance of the evidence is against his claim that
he made monthly child support payments.
Next, we note that the order modified the original divorce
decree, to the extent that the veteran's financial
obligations of support to his daughter were offset by the
amount she received from the Social Security Administration,
apparently based on his earnings record. A letter dated
January 1999 identifies a list of benefit dates and rates for
benefits paid to the veteran and his auxiliaries on his
record. The veteran's daughter is one of the "auxiliaries"
listed, and the benefit history indicates that she was
entitled to receive payments from October 1983, and that her
last rate change was in June 1994. It identifies her date of
birth as in January 1976. No further information was
provided.
However, we must point out that this evidence shows only that
the veteran's daughter received benefits from the Social
Security Administration. Although these benefits may have
been based on the veteran's earning record, they do not show
that the veteran was "reasonably contributing" to the
support of his daughter. 38 C.F.R. § 3.23(d)(1) (1999). In
fact, they show only that the government was contributing to
her support.
We note that the veteran submitted the a copy of the court
order offsetting his financial burden to his daughter based
on the amount of Social Security benefits she was entitled to
receive as evidence of his financial support of his daughter.
However, we also must point out that the purpose these
payments was to provide support for the child, regardless of
whether the child support payments came from the veteran, or
from some other source, such as the government. The purpose
of improved pension benefits are to aid the veteran in
support of dependents. Benefits made by the Social Security
Administration are not a reasonable contribution made by the
veteran, as payment of those benefits in this case did not
result in any reduction of his benefits. The record reflects
that the veteran did not contribute anything to the support
of his daughter, at least from November 1984 to November
1989. In November 1989, the veteran's financial obligation
to his daughter was to be offset by the amount of Social
Security payments that were made to her by the government.
We note that a certified lay statement was made by the
veteran's mother on his behalf, indicating that support was
provided to her granddaughter, see 38 C.F.R. § 3.200 (1999).
We do not doubt the veracity of this lay statement, however,
this statement can only convey the knowledge that the
informant has, and the evidence of record shows only that the
veteran did not financially support his daughter. The
evidence does show, however, that government benefit payments
were made by the Social Security Administration.
The Board concludes these payments do not constitute
"reasonable support" as defined by VA regulation.
Consequently, the preponderance of the evidence shows that
the veteran's daughter does not qualify as a dependent for VA
purposes, and the veteran's claim must be denied.
II. Whether new and material evidence has been received
sufficient to reopen a claim for service connection for a low
back disorder.
When presented with a claim to reopen a previously finally
denied claim, VA must perform a three-step analysis. Elkins
v. West, 12 Vet. App. 209 (1999). First, it must be
determined whether the evidence submitted by the claimant is
new and material. Second, if new and material evidence has
been presented, it must be determined, immediately upon
reopening the claim, whether the reopened claim is well
grounded pursuant to 38 U.S.C. § 5107(a) based upon all the
evidence and presuming its credibility. The Court concluded
in Elkins that the Federal Circuit in Hodge effectively
"decoupled" the relationship between determinations of
well-groundedness and of new and material evidence by
overruling the "reasonable-possibility-of-a-change-in-
outcome" test established by Colvin v. Derwinski, 1 Vet.
App. 171 (1991). Third, if the reopened claim is well
grounded, VA may evaluate the merits of the claim after
ensuring that the duty to assist under 38 U.S.C. § 5107(b)
has been fulfilled.
Thus, the first question that must be addressed by the board
is whether the evidence submitted by the claimant is new and
material. Governing statutory and regulatory provisions
stipulate that a claimant has one year from the date of
notice of an adverse RO rating decision in which to indicate
disagreement therewith; otherwise, that decision is final,
and may be reopened only upon the receipt of additional
evidence which, under the applicable statutory and regulatory
provisions, is both new and material. 38 U.S.C. § 5108 (West
1991); 38 U.S.C. § 7105 (West 1991); 38 C.F.R. § 20.1103
(1998).
"New" evidence, for purposes of the laws and regulations
discussed above, means more than evidence that has not
previously been included in the claims folder. That is,
evidence is not new merely because the veteran has again
submitted it to the RO. It must be more than merely
cumulative of evidence previously of record, in that it
presents new information. 38 C.F.R. § 3.156 (a) (1998).
In addition, the evidence, even if new, must be material, in
that it bears directly and substantially upon the specific
matter under consideration. That is, the evidence must be so
significant that it must be considered in order to fairly
decide the merits of the claim, by itself or in connection
with evidence previously assembled. See Hodge v. West, 155
F.3d 1356 (Fed. Cir. 1998); 38 C.F.R. § 3.156(a) (1998).
The question of what constitutes new and material evidence
requires referral only to the most recent final disallowance
of a claim. See Evans v. Brown, 9 Vet.App. 273, 284 (1996).
The evidence received subsequent to the last final decision
is presumed credible for the purposes of reopening the
appellant's claim unless it is inherently false or untrue, or
it is beyond the competence of the person making the
assertion. Duran v. Brown, 7 Vet.App. 216, 220 (1995);
Justus v. Principi, 3 Vet.App. 510, 513 (1992). See also
Robinette v. Brown, 8 Vet.App. 69, 75-76 (1995).
Historically, the veteran served on active duty from January
1975 to November 1975. His initial claim for service
connection for a low back disorder was denied in a December
1986 rating action. We note that the RO requested the
veteran's service medical records, but that the reply from
the National Personal Records Center indicated that no
medical records were in the veteran's file. The veteran
indicated that he had a back disorder since childhood, but
averred that it was aggravated by his service. The veteran
also subsequently applied for pension benefits based, in
part, on his pre-existing back disability. He indicated that
although he went to sick call several times during his active
service, he left without being seen. A private medical
record, dated September 1983 reveals that the veteran was
first seen in 1970, at the age of 15, for complaints of pain
in the left scapular region of two weeks duration, with a
similar problem about a year prior to that. That letter
indicates that the veteran was next seen in 1971, again in
June 1973, with complaints of pain in his low thoracic spine,
and again in October 1973, subsequent to a motorcycle
"wreck". According to the private physician's records, he
was next seen on July 6, 1976, following an "automobile
wreck" and had complaints of pain in the thoracic 4-5 area.
The physician also indicated that the veteran was next
treated on August 11, 1983. AP and lateral x-rays of the
lumbar spine and pelvis reportedly showed severe misalignment
of the pubic bones, which "could only occur when there was
sacroiliac misalignment also. This apparently was chronic
and had obviously been traumatically induced." Additional
records relevant to his back were submitted prior to the
December 1986 rating action. His claim that he submitted new
and material evidence sufficient to reopen his claim was next
denied in a January 1997 rating decision.
The evidence received subsequent to December 1986 reveal that
the veteran was diagnosed with thoracic disc disease,
traumatic, associated with significant pain.
A letter, dated August 1988, from the veteran's private
physician, indicates that a copy of the report prepared in
1983, discussed above, was enclosed, and that the veteran was
recently seen in May 1988, and diagnosed with chronic
postural-flexion strain thoracic spine with bilateral
intercostal neuralgia and chronic lumbar strain. The
physician stated that "These spinal problems would preclude
very heavy lifting."
A March 1991 radiographic report shows that the veteran was
assessed with unusual spondylosis at L3, spurring at L5,
however there did not appear to be any associated
subluxation. Acute fracture was not seen.
A VA report, dated April 1991, lists diagnoses of
spondylosis, L3, by history, and degenerative arthritis,
dorsal spine with compression deformity.
A VA treatment record, dated September 1992, reveals that the
veteran was seen with low back complaints. A neurosurgery
consultation of the same date shows that the veteran was
assessed with multiple musculoskeletal complaints, worsening
low back pain, with no evidence of lower extremity
radiculopathy.
An April 1993 VA report diagnoses the veteran with low back
pain.
A copy of an award letter from the Social Security
Administration (SSA), received by VA in April 1994, noted the
veteran's back disorders. That letter referenced medical
evidence, dated in 1983 and 1984 that was previously
submitted to VA. However, in the "Findings" section of the
award letter, the SSA determined that the medical evidence
established that the veteran had numerous disabling
disorders, other than his back disorder, and determined that
he was therefore disabled, as defined by SSA law and
regulation.
The veteran testified at a hearing before the RO, and before
a Member of the Board. He averred, in essence, that his pre-
existing back condition had increased in severity during his
active service, and that service connection was warranted on
that basis.
First, we determine that new and material evidence has been
submitted with relation to his back condition. The question
that must now be addressed by the Board is whether his claim
is well grounded.
In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert.
denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the
United States Court of Appeals for the Federal Circuit
(Federal Circuit) held that, under 38 U.S.C. § 5107(a), the
Department of Veterans Affairs (VA) has a duty to assist only
those claimants who have established well grounded (i.e.,
plausible) claims. More recently, the United States Court of
Appeals for Veterans Claims (Court or CAVC) issued a decision
holding that VA cannot assist a claimant in developing a
claim that is not well grounded. Morton v. West, 12 Vet.
App. 477 (July 14, 1999), req. for en banc consideration by a
judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per
curiam).
An appellant has, by statute, the duty to submit evidence
that a claim is well-grounded, which means that the evidence
must "justify a belief by a fair and impartial individual"
that the claim is plausible. 38 U.S.C.A. § 5107(a) (West
1991). When such type of evidence is not submitted, the
initial burden placed on the appellant is not met. Tirpak v.
Derwinski, 2 Vet. App. 609 (1992).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R.
§§ 3.303, 3.304, 3.305 (1999). Establishing a well-grounded
claim for service connection for a particular disability
requires more than an allegation that the particular
disability had its onset in service. It requires evidence
relevant to the requirements for service connection and of
sufficient weight to make the claim plausible and capable of
substantiation. See Tirpak v. Derwinski, 2 Vet.App. 609, 610
(1992); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The
kind of evidence needed to make a claim well grounded depends
upon the types of issues presented by a claim. Grottveit v.
Brown, 5 Vet.App. 91, 92-93 (1993). For some factual issues,
competent lay evidence may be sufficient. However, where the
claim involves issues of medical fact, such as medical
causation or medical diagnoses, competent medical evidence is
required. Id. at 93. Evidentiary assertions by the veteran
must be accepted as true for the purposes of determining
whether a claim is well grounded, except where the
evidentiary assertion is inherently incredible or is beyond
the competence of the person making the assertion. See King
v. Brown, 5 Vet.App. 19 (1993).
The three elements of a "well grounded" claim for direct
service connection normally are: (1) evidence of a current
disability as provided by a medical diagnosis; (2) evidence
of incurrence or aggravation of a disease or injury in
service as provided by either lay or medical evidence, as the
situation dictates; and, (3) a nexus, or link, between the
in-service disease or injury and the current disability as
provided by competent medical evidence. See Caluza v. Brown,
7 Vet.App. 498 (1995); see also 38 U.S.C.A. § 1110 (West
1991); 38 C.F.R. § 3.303 (1998); Layno v. Brown, 6 Vet.App.
465, 470 (1994); Espiritu v. Derwinski, 2 Vet.App. 492, 494-
95 (1992); cf. Godfrey v. Brown, 7 Vet. App. 398,406 (1995)
(where service connection is based on continuity of
symptomatology under 38 C.F.R. § 3.303(b), competent medical
evidence is not necessarily required to make the claim well
grounded.)
We note that there were apparently no medical records in the
veteran's service record. However, we also note that the
1983 report, and the 1988 addendum, prepared by his private
physician, details the veteran's doctor's visits from 1970 to
1988. Although the veteran was seen in 1970, with a similar
problem about a year prior to that, was next seen in 1971,
again in June 1973, and again in October 1973, subsequent to
a motorcycle "wreck", that report does not show that the
veteran was seen during his active service from January to
November 1975. In fact, according to the private physician's
records, he was next seen on July 6, 1976, following an
"automobile wreck" and had complaints of pain in the
thoracic T4-T5 area. The physician also indicated that the
veteran was subsequently treated on August 11, 1983.
The additional medical evidence also does not show that there
is a nexus between the veteran's current disorder and any in-
service disease or injury. We note that the veteran avers
that his infantry training aggravated his back disorder.
However, the current medical evidence does not show that such
a relationship is established.
In addition, although the medical evidence submitted
subsequent to December 1986 is new, it shows that the veteran
was not again treated for a back disorder until a post-
service motor vehicle accident in July 1976.
Thus, although the medical evidence shows that the veteran
currently has back disorders, the second and third elements
for a well grounded claim have not been met. We note that
the veteran and his mother have averred to the link between
the veteran's service and his current condition. However, we
must also point out that a claimant would not meet her burden
of presenting a plausible or possible claim merely by
offering lay testimony because lay persons are not competent
to offer medical opinions. Espiritu v. Derwinski, 2
Vet.App. 492, 494 (1992). Consequently, lay assertions of
medical causation cannot constitute evidence to render a
claim well-grounded under 38 U.S.C.A. § 5107(a) (West 1991);
if no cognizable evidence is submitted to support a claim,
the claim cannot be well-grounded. Grottveit v. Brown, 5
Vet.App. 91, 93 (1993). Thus, the veteran's claim must be
denied.
We note that the Court has held that when a claimant fails to
submit a well-grounded claim under 38 U.S.C.A. § 5107(a)
(West 1991), VA has a duty under 38 U.S.C.A. § 5103(a) (West
1991) to advise the claimant of the evidence required to
complete his application, in circumstances in which the
claimant has referenced other known and existing evidence.
Robinette v. Brown, 8 Vet. App. 69 (1995); see also Epps v.
Brown, 9 Vet. App. 341 (1996). In the case at hand, the
Board finds that this duty is not triggered. In particular,
the Board notes that the RO requested additional information
from the veteran on numerous occasions, however, our review
of the record shows that he did not respond. In addition, in
this case, the veteran has repeatedly been informed of the
requirements of a well-grounded claim.
III. Entitlement to service connection for a knee disorder.
As indicated above, the three elements of a "well grounded"
claim for direct service connection normally are:
(1) evidence of a current disability as provided by a medical
diagnosis; (2) evidence of incurrence or aggravation of a
disease or injury in service as provided by either lay or
medical evidence, as the situation dictates; and, (3) a
nexus, or link, between the in-service disease or injury and
the current disability as provided by competent medical
evidence. See Caluza v. Brown, 7 Vet.App. 498 (1995); see
also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303
(1998); Layno v. Brown, 6 Vet.App. 465, 470 (1994); Espiritu
v. Derwinski, 2 Vet.App. 492, 494-95 (1992); cf. Godfrey v.
Brown, 7 Vet. App. 398,406 (1995) (where service connection
is based on continuity of symptomatology under 38 C.F.R.
§ 3.303(b), competent medical evidence is not necessarily
required to make the claim well grounded.) An appellant has,
by statute, the duty to submit evidence that a claim is well-
grounded. Tirpak v. Derwinski, 2 Vet. App. 609 (1992).
The veteran testified at his personal hearing that he now
manifested degenerative joint disease of his knees due to
"athlete's knees" he manifested in service.
However, the medical evidence does not show that a knee
disorder is currently manifested. A 1992 VA neurology
consultation record shows that the veteran complained of knee
and back pain. The assessment was multiple musculoskeletal
complaints, worsening low back pain, no evidence of lower
extremity radiculopathy. While the medical evidence shows
extensive complaints and treatment for a back disorder, no
such evidence has been presented with respect to a knee
disorder.
We note that the existence of a current disability is the
cornerstone of a claim for VA disability compensation.
38 U.S.C. §§ 1110, 1131 (West 1991 & Supp. 1999); see
Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that
Secretary's and Court's interpretation of sections 1110 and
1131 of the statute as requiring the existence of a present
disability for VA compensation purposes cannot be considered
arbitrary and therefore the decision based on that
interpretation must be affirmed); see also Caluza v. Brown, 7
Vet.App. 498, 505 (1995); Brammer v. Derwinski, 3 Vet.App.
223, 225 (1992); Rabideau v Derwinski, 2 Vet.App. 141, 143
(1992).
In the instant case, the veteran has not presented evidence
of a current knee disability that is related to his service.
In order for his claim to be well grounded, such evidence
would need to be submitted. Thus, the veteran's claim must
fail, and accordingly be denied.
We note that the Court has held that when a claimant fails to
submit a well-grounded claim under 38 U.S.C.A. § 5107(a)
(West 1991), VA has a duty under 38 U.S.C.A. § 5103(a) (West
1991) to advise the claimant of the evidence required to
complete his application, in circumstances in which the
claimant has referenced other known and existing evidence.
Robinette v. Brown, 8 Vet. App. 69 (1995); see also Epps v.
Brown, 9 Vet. App. 341 (1996). In the case at hand, the
Board finds that this duty is not triggered. In particular,
the Board notes that the RO requested additional information
from the veteran on numerous occasions, however, our review
of the record shows that he did not respond. In addition, in
this case, the veteran has repeatedly been informed of the
requirements of a well-grounded claim.
ORDER
Entitlement to retroactive benefit payments for a dependent
child, based upon the veteran's benefits for permanent and
total disability based on non-service-connected disability
payments, are denied.
Entitlement to service connection for a low back disorder is
denied.
Entitlement to service connection for a knee disorder is
denied.
M. W. GREENSTREET
Member, Board of Veterans' Appeals